How an outdated federal provision helped pave the way for new voting restrictions

Georgia has tightened identification requirements for absentee voting. Arizona has allowed voters to be removed from the lists if they ...

Georgia has tightened identification requirements for absentee voting. Arizona has allowed voters to be removed from the lists if they don’t vote at least once every two years. Florida and Georgia have sharply reduced the use of drop boxes for mail-in ballots.

All of these new voting restrictions would have been rejected or at least relaxed if a federal civil rights protection from the 1960s was still intact, electoral law experts have said.

For decades, the heart of the landmark 1965 Voting Rights Act was a practice known as preclearance, detailed extensively in Section 5 of the act. It forced states with a history of racial discrimination to seek Justice Department approval before enacting new election laws. Thanks to preclearance, thousands of proposed vote changes were blocked by Justice Department lawyers in the Democratic and Republican administrations.

In 2013, however, Section 5 was emptied by the Supreme Court, Chief Justice John G. Roberts Jr. wrote in a majority opinion that racial discrimination in voting is no longer a significant threat.

As Republican-led state legislatures tightened voting rules after the 2020 election, new restrictions were passed or proposed in four states that are no longer required to seek approval before changing laws on the vote. vote: Georgia, Arizona, Texas and Florida. These new restrictions would almost certainly have been halted, blocked, or changed had Section 5 still been used, according to interviews with former federal prosecutors and a New York Times review of past civil rights actions by the department. of Justice.

“There is nothing subtle about what they are trying to do,” said Tom Perez, former head of the Justice Department’s civil rights division and former chairman of the Democratic National Committee. “If Section 5 was still there, these laws would not see the light of day. “

Restoring preclearance is now at the center of a debate in Congress over the passage of federal voting law.

Tuesday, the House passed the John Lewis Voting Rights Advancement Act, which would reinstate preclearance in several states, among other changes. Attorney General Merrick B. Garland has urged Congress to revive preclearance, but Senate Republicans oppose such a move, and a Senate filibuster threatens to sink the bill before it can reach office from President Biden.

Article 5 covered nine states – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – and several counties in New York, Florida, California, South Dakota and North Carolina.

Many changes have been made by the Department of Justice over the years of preclearance. Yet thousands of proposed laws and voting rules have been found to be discriminatory. From January 1982 to July 2005, attorneys for the Department of Justice filed 2,282 objections against 387,673 proposed section 5 voting changes, according to a study by the University of California, Berkeley, School of Law.

Again and again this year, states have passed voting restrictions that closely follow measures that were flagged and rejected years ago under preclearance.

In Georgia, a law that tightened identification requirements for absentee voting will have a disproportionate effect on black voters, who make up about a third of the electorate. More than 272,000 registered voters lack the identity documents that are newly required to vote by mail, according to an Atlanta Journal-Constitution study. More than half of them are black.

“If you have a voter identification law where a lot of people don’t have one of the IDs, that’s a red flag,” said Jon Greenbaum, chief counsel for the Advocates Committee for civil rights under the law and former right to vote. lawyer in the Department of Justice under the Clinton and George W. Bush administrations.

Mr. Perez, head of the civil rights division from 2009 to 2013, recalled an Arizona bill that proposed to prohibit third parties from casting postal ballots on behalf of voters. The Navajo Nation protested that some of its communities were hours away from the nearest mailbox, making postal voting difficult.

The Justice Department pushed Arizona lawmakers back into preclearance. “We asked them a series of very pointed questions because we were really concerned that it was discriminatory, and they took it away,” he said. “As a result of the questions we asked, Section 5 worked in this case. But once Section 5 was emasculated in 2013, they were given carte blanche to enact it. “

This bill, Mr. Perez noted, was similar to a new Arizona ballot collection ban confirmed in a recent Supreme Court decision.

Republicans across the country have defended the new election laws and denied that they are restrictive, often repeating the mantra that the laws make “easier to vote, harder to cheat.”

Georgia Governor Brian Kemp called “disgusting” a lawsuit by the Justice Department over new state identity requirements and a “politically motivated attack on the rule of law.”

Republicans do not dispute that the current Justice Department, led by Mr Garland, allegedly challenged the new section 5 laws. But they argue that the Biden administration is focused on the politics of voting rights and not on the merits of the laws.

“Laws that would likely have been pre-approved in a previous Democratic administration would be easily challenged by the current Biden administration,” said Justin Riemer, chief counsel for the Republican National Committee.

He added: “And it is very evident to us that their determinations would be politically motivated to prevent states from adopting reasonable regulations that protect the integrity of their electoral processes. “

Six former leaders of the civil rights division under Republican presidents from Ronald Reagan to Donald J. Trump declined to comment or did not respond to requests for comment.

According to voting rights experts, Article 5’s greatest power was deterrent.

The burden of proof that the laws were not discriminatory was placed on the covered states: they had to show that the laws would not further restrict voting rights among communities of color.

“Many of these provisions would never have been enacted if Article 5 was still there,” Greenbaum said. “Because these states know that if they couldn’t disprove regression, it would collapse. “

The recent law in Arizona that removed voters from the permanent early voting list if they do not vote at least once every two years caught the attention of Deval Patrick, who led the civil rights division under the administration and then served as governor of Massachusetts. .

In 1994, Mr. Patrick opposed a Georgia proposal that would remove registered voters from the lists if they do not vote for three years, unless they reaffirm their registration status. He said Arizona law hit him as another example of a purge.

“I think the purge is one of the most pernicious endeavors, and I say that as someone who is supernaturally groomed,” Mr. Patrick said. “It’s easier in many states today to keep a driver’s license than it is to keep your voter registration.”

Arizona Gov. Doug Ducey, a Republican, insisted the new law was about electoral integrity. Active voters would still get ballots, while resources would be made available for “priorities such as election security and voter education,” he said. in a video after signing the invoice. “Not a single voter in Arizona will lose their right to vote because of this new law.”

Mr Patrick also said the preclearance process helped prevent changes to the voting rules aimed at staging a victory.

He pointed to Georgia, where Mr. Biden won by less than 12,000 votes. Georgia’s new electoral law prohibits the use of provisional ballots for voters who show up in the wrong constituency before 5 p.m. on election day. But voters “out of constituency” accounted for 44% of provisional ballots last year, by far the most common reason. Of 11,120 provisional ballots counted, Mr. Biden won 64%.

“When the margin of victory was as slim as it was, the idea that the provisional ballots might not be counted due to a very technical and frankly insignificant problem is a problem,” said M Patrick.

Voting rights advocates are also comparing new laws restricting the use of drop boxes to past attempts – blocked by the Justice Department under due diligence – to reduce the number of polling stations or postal polling stations.

Only in 1984, for example, lawyers for the Reagan administration opposed the relocation of a Dallas polling station to a predominantly white community from a largely black community, and disputed invoices in Arizona which reportedly reduced access to polling stations by changing locations and reducing hours of operation.

In Georgia, 56% of absent voters in urban Fulton County and suburban Cobb, DeKalb and Gwinnett counties returned their ballots in drop boxes, according to The Atlanta Journal-Constitution. Under the new Georgian law, these counties will now only have 23 drop boxes, up from 94 in the 2020 elections.

And in Texas last year, with about a month before election day, Gov. Greg Abbott ordered counties to offer a single location for voters to cast mail-in ballots.

“So you had counties of four million people and that was basically a place to cast your ballot,” said Chad Dunn, a longtime voting rights lawyer. “These are provisions that would have been taken immediately. “

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Newsrust - US Top News: How an outdated federal provision helped pave the way for new voting restrictions
How an outdated federal provision helped pave the way for new voting restrictions
Newsrust - US Top News
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